FX Tells Supreme Court Not to Take Up Olivia de Havilland 'Feud' Fight

Left, Photofest; Right, courtesy of FX

Olivia de Havilland (left), Catherina Zeta Jones as de Havilland in 'Feud: Bette and Joan'

The 102-year-old actress' petition doesn't warrant review, argues FX, because of lack of jurisdiction and proper application of the "actual malice" standard.

Olivia de Havilland, the 102-year-old actress who starred in Gone With the Wind, may have one last legal fight within her, but on Tuesday, FX Networks urged the U.S. Supreme Court to reject her petition to review the rejection of a lawsuit she brought over Feud: Bette and Joan.

In March, de Havilland experienced a huge defeat at a California appeals court. She alleged that the Ryan Murphy series violated her publicity rights through Catherine Zeta-Jones' portrayal of her and put her in a false light by depicting her as a vulgar gossip. The appeals court responded that she couldn't demonstrate a probability of prevailing on the merits of her claims and that her complaint should be stricken under California's anti-SLAPP statute, a law designed to curtail frivolous legal actions impinging First Amendment activity.

"Contrary to Petitioner’s hyperbole, the court of appeal did not hold that the First Amendment 'grant[s] absolute immunity to docudramas,' — nor anything close to that" states FX's opposition brief. "The court actually held, far more modestly, that Petitioner’s false-light claim failed as a matter of law because (1) she could not show that the snippets of dialogue that formed the basis for her claim were 'highly offensive to a reasonable person,' as they must be under California law for Petitioner to have a claim and (2) alternatively, Petitioner had no evidence that Respondents, who indisputably tried to portray Petitioner as the wise and respectful counselor and friend to Davis that she was in real life, acted with 'actual malice,' as New York Times v. Sullivan and its progeny require in a case of alleged public-figure defamation."

That the actress was depicted as calling her sister a "bitch" wasn't actionable because it wasn't highly offensive, recounts FX's attorneys, adding that there was evidence showing that the vulgar word that Zeta-Jones used in the series was a substantially truthful characterization of de Havilland's actual words.

FX, represented by Kelly Klaus and Sarah Boyce at Munger Tolles, argues that since California courts are applying state law in this respect, there's no real jurisdiction for the Supreme Court to grant cert and take up this case.

Nevertheless, FX also addresses the "actual malice" issue — which is arguably the most provocative one in the context of a fictionalized docudrama.

When it comes to defamation lawsuits or false light claims, public figures must demonstrate actual malice, and with respect to expressive non-fiction works like newspaper articles or documentaries, that generally means knowledge of falsity or reckless disregard of truth. But what about dramatization? Here, the California appellate court interpreted precedent to mean that de Havilland must demonstrate that FX" either deliberately cast her statements in an equivocal fashion in the hope of insinuating a defamatory import to the reader, or that it knew or acted in reckless disregard of whether its words would be interpreted by the average reader as defamatory statements of fact."

In her petition, de Havilland argues that the "so-called modified rule for docudramas in fact eliminates the New York Times actual malice standard" by protecting knowing or recklessly false statements to the same degree as truthful or negligently false ones.

Nonsense, responds FX. It's still the same standard used for more than a half-century. The California appeals court just reached the conclusion she couldn't demonstrate actual malice.

States the opposition (read here): "In reaching that conclusion, the court relied on a sworn declaration from Ryan Murphy, Feud’s co-creator, stating that he “intended Zeta-Jones’s portrayal of de Havilland to be that of ‘a wise, respectful friend and counselor to Bette Davis, and a Hollywood icon with a unique perspective on the past.’” The court of appeal found insufficient Petitioner’s claim that the writers’ use of stylized dialogue amounted to evidence of actual malice. Instead, the court found the evidence uncontroverted that Feud’s creators sought to portray Petitioner in a positive light and consistent with the historical record."